Sanjay Kumar Gupta, J.

This criminal appeal has been filed against the judgment dated 25.10.2004 passed by the learned Sessions Judge, Kathua in File No. 58/Sessions entitled State vs. Karan Dass, by virtue of which the Court below has convicted the accused-appellant and has sentenced him on 28.10.2004 to undergo rigorous imprisonment of ten years with a fine of Rs. 5000/- for offence under Section 307 RPC.

2. Appellant has challenged the impugned judgment of conviction and order of sentence on the ground that trial court has not appreciated the facts in proper manner; that trial court has not properly appreciated the statements of witnesses; that trial court has not appreciated the statement of witness Tarsem Lal S/o Chajju Ram that injured Tarsem Lal S/o Roop Lal told him that accused hit him, so question of not recording his statement did not arise. That injured was in a position to talk, still his statement was not recorded. That Doctor has not stated that injured was not in position to talk; that motive has not been established; that court below has relied upon statements of interested witnesses; that there was material contradiction in statements of witnesses.

3. Brief facts of the case are that on 23.10.1995 one Pritam Singh S/o Jaimal Singh R/o Tikkri, Udhampur, the then conductor of Matador bearing Registration No.6696/JK02C, accompanied by one Tarsem Lal S/o Chhajju Ram produced Tarsem Lal S/o Roop Lal R/o Muthi Jagir, the injured, in an unconscious state in Matador No.6696/JK02C in Police Post, Parole; he verbally reported that Karan Dass alias Billu S/o Milkhi Ram, the accused was conductor with the matador in question prior to Pritam Singh and had enmity with the owner of the Matador Tarsem Lal regarding the accounts. The accused usually used to threaten Tarsem Lal to do away with him. That on that day viz. 23.10.95 in the evening at 7 pm accused Karan Dass was travelling in the matador in question on its roof from Kathua towards Padyari; he used to vomit on the roof of the matador for which driver of the matador Manohar Lal, the real bother of Tarsem Lal, asked him not to vomit or spit; this enraged Karan Dassaccused. When matador reached at Padyari and was halted, there Tarsem Lal was on his shop, the accused Karan Dass alias Billu s/o Mulkhi Rarn, on the basis of previous enmity, came armed with Bamboo lathi on the shop and started calling names. On being questioned, Karan Dass with intention to kill and commit murder hit with a bamboo lathi on the head of Tarseem Lal s/o Roop Lal and that struck Tarsem Lal on the head over the left ear. Complainant and others intervened, Tarsem Lal got injured and fell on the ground unconscious so has been produced in that state in the police for action as warranted under law.

4. On the basis of this report, a case FIR No.280/95 for offence under Section 307 RPC was registered with Police Station, Kathua on 24.10.95 and the investigation has been conducted at the initial stage by Sub-Inspector, In-charge Police Post, Parole who proceeded on spot, prepared the site plan and recorded the statement of complainant. Thereafter In-charge Head Constable recorded the statements of witnesses to the occurrence and has seized lathi as weapon of offence, sought opinion thereof from the Medical officer. The injured Tarsem Lal remained admitted in DMC, Ludhiana from the date of occurrence and on 13.12.95 was discharged from the Hospital in an unsatisfactory condition and was brought home. The injured continued to be in critical condition, so his statement could not be recorded and Medical Officer of the Parole Hospital issued a certificate after examining the injured at his residence to the effect that the injured can neither hear nor can speak; he was not in a position to make any statement. After investigation, challan against accused was produced before CJM, Kathua on 01.01.1996.

5. The then learned CJM has committed the case to the Sessions Court as offence under S.307 RPC was excl